As was reported by the Associated Press, the birth of Susan Anne Catherine Torres, delivered by a brain-dead mother who was kept on life support to sustain the pregnancy, made medical history less than three years ago. A recently filed malpractice lawsuit is now raising legal questions about the degree to which a doctor's obligations in treating a pregnant woman also extend to her unborn fetus. In the lawsuit, Jason Torres, the father of the Susan Anne and husband of the brain-dead mother, Susan Torres, seeks damages against the ER physician who treated his wife in 2005. The lawsuit holds the ER physician responsible not only for the mother's death, but also the death of the baby, who died 5 weeks after delivery due to complications from a premature delivery.

In the lawsuit, Mr. Torres alleges that the ER doctor dismissed as "morning sickness" symptoms that indicated a more serious problem. Those symptoms included memory lapses--witnessed by a nurse--in which Susan Michelle Torres couldn't recognize her husband when she was sitting next to him. The Complaint alleges that further tests would have revealed bleeding on the brain. After being discharged from the hospital, Ms. Torres fell into a coma from a brain hemorrhage caused by melanoma. At the time, she was about 14 weeks pregnant. Mr. Torres made the decision to keep his wife on life support, with the hope that the baby could develop to the point of viability. Doctors were able to keep the mother on life support for 3 months, long enough for the fetus to become viable. Delivery occurred 13 weeks prematurely. The next day the mother was taken off life support and died.

The legal system has struggled with how to interpret case law and statutes because of the unique circumstances of the case. Before the case was filed in federal court, for example, two different Fairfax County judges disagreed on whether the suit could go forward under Virginia law, with varying interpretations of whether the fetus could be considered a "patient" and different opinions on the relevance of various precedents in malpractice law.

In court papers, the doctor's lawyer argued that because the baby "was never a patient of Dr. Dixon, no legally cognizable duty exists on the part of Dr. Dixon to Baby." Mr. Torres countered by arguing that it's clear that a doctor would be negligent for prescribing medications to a pregnant woman that are known to harm a fetus, and that the negligence alleged in this case is no different.

Mr. Torres did acknowledge however, that ultimately, there was nothing the ER doctor could have done that day to save the mother's life from such an aggressive, advanced melanoma. But he said that proper care could have allowed her to live longer and perhaps carry the baby to term.The defense contends the mother was on life support and was able to carry the fetus just as long as she could have if she were conscious. Trial is scheduled for September.

This case represents the very type of challenging cases that the lawyers at Silverman, Thompson, Slutkin & White are trained to handle. If you or a loved one believe you have a medical malpractice case, call the lawyers at STSW for a free consultation.

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